Legal Mobilization Research Articles

From Rights to Collective Action. A Way Out of Labour Exploitation

Abstract This article critically assesses the criminal law approach to labour exploitation and challenges the assumption that its limited effectiveness depends on the hesitation and unwillingness of migrant workers to collaborate with competent authorities. It adopts a legal mobilisation approach to explore how law and litigation can effectively play a role in fighting labour exploitation. It does so by focusing on the experience of collective mobilisation of migrant farmworkers in the Agro Pontino in Italy. In accordance with the findings emerging from the case study, the article makes an attempt at rethinking strategies for fighting labour exploitation in Europe, based on the needs and expectations of exploited workers as described in the 2019 FRA Report on labour exploitation. It proposes therefore an exercise of “legal imagination” that aims to identify under EU law the provisions that would allow to translate these needs and expectations into legal claims.

Interrogating the Debates Around Lawfare and Legal Mobilization: A Literature Review

Abstract Liberal democracies throughout the world have been confronted with the instrumentalization of the rule of law by private and public actors to achieve undemocratic aims, thereby challenging the widely held idea that the law is concrete, normative and objective in a manner that political ideologies are not. At the same time, law-based advocacy remains an effective mechanism to counter the rise of state and non-state actors who seek to impede the advancement of progressive structural transformation toward the realization of human rights. In attempting to explain these contradictions, the terms ‘lawfare’ and ‘legal mobilization’ have gained prominence in scholarly discussions, largely in reference to the social and political ramifications of a particular application of the rule of law and whose interests it seeks to advance. This paper explores the implications of the rule of law as an institution of power that has the potential to both positively and negatively impact progressive social change in the pursuit of expanding human rights. The literature broadly unpacks the functional use of legal mechanisms, strategies associated therewith and the conditions under which these combined factors achieve or undermine the intended objectives of various state and non-state actors. The paper presents three specific strands in the literature that explore: (1) how social movements use law-based advocacy to counter (il)legitimate forms of legal instrumentalism that sustain hegemony and subsequent marginalization; (2) the judicialization of politics at the domestic and international levels; and (3) the legal culture and practices that govern litigation strategies. The paper addresses the debate across a number of themes, including economic and social rights protection, international criminal justice and environmental protection.

Children and Youth in Strategic Climate Litigation: Advancing Rights through Legal Argument and Legal Mobilization

AbstractChildren and young people constitute more than one quarter of all plaintiffs in rights-based strategic climate litigation cases filed globally up to 2021. This article examines the implications of this development for children's environmental rights inside and outside the courtroom, relying on the analysis of case documents, media coverage, and the broader literature on strategic climate litigation and children's rights. The article finds that children are well placed to make powerful arguments for intergenerational justice. Conversely, children's rights arguments that address their current-day grievances are under-utilized. More consistent inclusion of these types of claim could strengthen children's environmental rights, clarifying and enforcing legal obligations towards children in the context of the climate crisis as it unfolds. The involvement of children in strategic climate litigation, moreover, can advance the critical role of this demographic as stakeholder in climate solutions. However, the participation of children also raises ethical and practical dilemmas, which are currently poorly understood and only haphazardly addressed.

Labour Movements and the Effectiveness of Legal Strategy: Three Tenets

Social movements of every stripe have mobilized law in order to confront contemporary injustices and redetermine social experiences and expectations. The multiple disciplinary literatures that track and evaluate these strategies provide a rich picture of legal and political mobilization at different scales and relative successes. This article draws together the shared concern for strategic litigation of labour law and legal mobilization scholars in order to confront and rationalize the factors that determine its effectiveness for labour movements. This article sets out three core tenets of strategic litigation to provide a framework for analysing its potential effectiveness: Effective legal arguments; state law’s institutional capacity; and political objectives. Drawing on interdisciplinary insights, these tenets present a sober conception of the ways that law is mobilized by labour movements, to provide a critical conception of the opportunities and limitations of their strategic uses of law. Legal Mobilization, Labour Movements, Institutional Capacity, Political Objectives, Employment Status, Uber Drivers, Limb B Workers

The Worker and the Law Revisited: Conceptualizing Legal Participation Mobilization and Consciousness at Work

Situating legal mobilization within a wide-ranging conceptual framework of worker activity that goes beyond recent interest in ‘strategic litigation’ and related organizing in the gig economy, this contribution explores the fundamental relationship between ‘laypeople’, i.e., the non-professional subjects of law, and labour law. Notwithstanding a growing interest in empirical labour law research, there remains a lack of conceptual clarity and rigorous evidence pertaining to how workers, activists and employers think about law and how this has evolved over time. The idea, often implicit within policy discourses, that we have become increasingly ‘legally minded’, and the implications of this, remain particularly underexplored. This article develops understanding of what legal mobilization is, does, or potentially can do, mapping the range of ways in which ‘laypeople’ may invoke or engage with law at work, distinguishing between activities defined as (1) legal participation; (2) mobilization; and (3) consciousness. This schema goes beyond the more obvious ways in which laypeople engage formal legal institutions, ‘strategically’ or otherwise, towards everyday processes of constructing ‘legalities’. The concept of legalities, meaning taken-forgranted assumptions about what is ‘legal’, provides a lens through which to view the ideological processes involved in the constitution of society and economic institutions through law and vice versa. Revisiting the theme of the worker and the law, this schema focuses as much on how the worker understands and acts upon the conceptions of law as much as how the law characterizes and protects the worker, and how the interrelations between the two may have evolved over time. Legal Participation, Mobilization, Consciousness, Juridification, Individual Employment Rights, Employment Tribunals

Mobilizing for Recognition: Indie Unions, Migrant Workers, and Strategic Equality Act Litigation

Drawing on a broad repertoire of action, including strategic litigation, several new activist unions have appeared that seek to represent the multiracial working class of contemporary Britain. Although the court cases that have drawn the most attention are those that challenge the misclassification of employees or ‘workers’ as ‘self-employed’, another dimension of these unions’ strategic litigation has been the utilization of the Equality Act 2010 (Equality Act) to allege racial discrimination. The contention advanced in this article is that it might be possible to read unions’ increasing use of the Equality Act as instances of them pursuing a politics of recognition. For those of us interested in analysing and assessing the strategies of unions in respect of their multiracial membership, the critical question is why and how race discrimination claims may act to boost indie unions’ efforts to organize diverse workplaces. Drawing on Nancy Fraser’s work that asserts a politics of recognition can contribute to a politics of redistribution, this article proposes that recognition claims may be advancing the broader goals of labour organizing by building a worker subjectivity poised for action, and a collective identity undergirded by respect, mutual understanding, and solidarity. Discrimination, Migrant Workers, Legal Mobilization, Recognition, Organizing

Social policy and the judicial making of Europe: capital, social mobilisation and minority social influence

AbstractThis article puts forward a cohesive narrative to explain the contribution of European social policy to the judicial making of Europe. By making a case for the inclusion of social policy as part of the discourse on the constitutional practice of the Court of Justice of the European Union, together with focusing on a socio-legal deconstruction of four seminal social policy judgments of the Court (Defrenne II, Von Colson, Harz and Francovich), the article undertakes a systematic approach to tracing the contribution of the field, and more specifically of its labour and non-discrimination law strands. To formulate its socio-legal analysis, the article adopts an explanatory framework, which draws on Bourdieu’s concepts of capital and field, the theory of legal mobilisation and Moscovici’s minority social influence, and which is applied to the selected judgments as a case-study. The framework enables the analysis to shed light on the dynamics between stakeholders in the social dimension of the European legal field and to persuasively showcase how social policy case-law, despite its sui generis dynamics, merits to have a place in the conversations surrounding the transformation of Europe.

Water Rights Struggles in Johannesburg and Detroit Revisited: Looking Beyond Courts at the Politics and Power of Rights-Based Legal Mobilization in a Neoliberal Global Order: A ‘Powerpack’ Analysis

Abstract Responding to the limits of court-based analyses and top-down position-taking in prevailing legal mobilization scholarship, this article goes beyond the courtroom to explore the value of rights-based legal mobilization from the perspective of those engaged in the campaigns to challenge racialized water disconnection in Johannesburg (2004–9) and Detroit (2014–). Against the backdrop of the ‘losing’ cases of Mazibuko and Lyda, the article finds evidence in the feedback from protagonists, of the relevance of rights-based mobilization notwithstanding the judicial defeats. The value of legal mobilization ascribed by affected communities and their allies aligns with the understanding of law as a form of political power in a dialectical relationship between structure and agency (Crawford and Andreassen 2013: 8–9). Using an expanded version of the ‘power cube’ (Gaventa 2006 and 2005), referred to here as the ‘powerpack’, the article engages in a bottom-up nuanced analysis of the multi-dimensional power of legal mobilization. In doing so, it contributes towards a deeper understanding of the transformative potential of rights-based mobilization for egalitarian socio-economic change.

Mobilizing anti‐discrimination law: the litigation strategies of UK and French trade unions compared

AbstractBased on cross‐national comparative research conducted in France and the United Kingdom, this article explores to what extent and under what conditions trade unions situated in different legal systems have turned to the courts to challenge discrimination at work. It investigates the interplay between a broad range of structural factors that offer specific opportunities, and the way in which trade unionists interpret contexts to promote legal mobilization in addition to or in place of other repertoires of action. In so doing, the article contributes to the understanding of anti‐discrimination law enforcement and the role of micro‐level actors in enabling litigation strategies.

Indigenous women, multiple violences, and legal activism: Beyond the dichotomy of human rights as “law” and as “ideas for social movements”

AbstractThis review interrogates the divide between human rights “as ideas for social movements” and human rights “as law” that permeates the literature on human rights law and gender violence by putting it into conversation with the scholarship on Indigenous women's legal activism against the multiple forms of violence that they face. This divide obscures the ways in which Indigenous women across the Americas have appropriated and re‐signified the discourse and practice of human rights by engaging in formal legal processes at the community, domestic, and supranational levels. I problematize this dichotomy and argue that human rights “as ideas for social movements” and “as law” go hand in hand to challenge the multiple injustices affecting the lives of Indigenous women. This review invites sociologists to consider the experiences of Indigenous women's legal activism and its relationship to colonialism in their analyses of social movement dynamics and it contributes to decentering analyses on legal mobilization that are based on the global North.

Environmental Legal Mobilization

The mobilization of law to address the degradation of the environment implicates a wide range of institutions, actors, and materials. This article maps developments in the study of environmental legal mobilization. It examines the different theoretical approaches that account for why and how groups mobilize the law (or do not), including explanations focusing on law; legal opportunity structures; resources; and/or ideas, identities, and knowledge. It then considers some of the methodological challenges of studying environmental legal mobilization and highlights recent efforts to overcome them and broaden the scope of the analysis. The article then identifies four trends that are shaping the mobilization of law: ( a) changing forms of environmental law and regulation; ( b) shifts in the political landscape, including repression of civil society and the undermining of the rule of law; ( c) the growing diversity of the environmental movement; and ( d) the cumulative impacts of environmental and climate degradation on the very institutions, processes, and resources available for the mobilization of law.

How a Legal Fight Against Monsanto Became an Indigenous Self-determination Claim in Mexico

Abstract This article examines the successful legal battle led by Mayan beekeepers participating within an activist network against the permission granted to Monsanto in 2012 by the Mexican government to commercialize genetically modified soybeans in the Yucatán Peninsula. Our approach emphasizes the relevant role of rights-advocacy lawyers and their organizations working together with local grassroots, Mayan beekeepers and scholars in a legal battle that puts forward the rights to a healthy environment and to indigenous self-determination. We consider the judiciary's response to such demands and, in doing so, we explain why some collective rights, such as the right to free, prior, and informed consultation, were more appealing to Mexican judges while others were blatantly ignored. Likewise, we explore why and how a legal fight against Monsanto GM soybean became a struggle for the recognition of Mayan communities’ self-determination expressed in the right to free consent and self-consultation. Our research sheds light on some positive and unexpected outcomes of legal mobilization against GMOs in the Yucatán Peninsula, while acknowledging that GM soybean, despite being banned, is still produced and marketed illegally in the country.

“Legal exhaustion” and the crisis of human rights: Tracing legal mobilization against sexual violence and torture of Kurdish women in state custody in Turkey since the 1990s

Throughout the 1990s and 2000s, Kurdish women reported sexual violence in state custody during intense conflicts between the Turkish military and the guerrilla organization PKK. Drawing on archival research and in-depth interviews with lawyers and activists in Turkey, we trace the development of legal mobilization by human rights lawyers and activists who characterized state-led sexual violence in the Kurdish region as a war crime against women and brought cases before domestic courts and the European Court of Human Rights (ECHR). Inspired by the work of Kerem Altıparmak, we develop the concept of “legal exhaustion” to characterize the emotional and relational aspects of legal mobilization in the context of war and counterterrorism politics. Bringing together scholarship in sociolegal studies and critical approaches to human rights, we argue that legal exhaustion is productive—not just an unproductive and constraining state—prompting human rights lawyers to sustain legal mobilization in/outside courts and critique national and international laws.

The opportunity and limitation of legal mobilisation for social struggles: a view from the Argentinian factory recuperation movement

AbstractThis paper examines the tension between law's opportunity to deliver social transformation and the normative limitations that shape its effectiveness as a tool of social struggle. The role of law's normative limitations on legal mobilisation strategies, or the effect of entrenched social interests on permissible legal claims, has not been properly conceptualised in legal mobilisation scholarship. In response, this paper presents a conceptual framework that comprehends the opportunity and limitation of legal mobilisation as caught in the tension between the interpretive opportunity to redetermine legal meaning and the normative deficit inherent to this task. By re-engaging with the theoretical underpinnings of legal mobilisation, we will evaluate the potential for certain types of social transformation using law and revisit the rationale for strategic legal action. We will bring together our conceptual treatment of legal mobilisation with a sobering analysis of the Argentinian factory recuperation movement's mobilisation of legal demands. The movement's relative success in confronting the legal system's commitment to private property rights and winning protections for worker co-operatives presents an opportunity to learn about the effective potential of legal strategy and the extent to which it can be used to confront the normative commitments of a legal system.

Employer constraints on trade union renewal in Chile

The present article explores the revitalisation strategies developed by a company-level trade union in the food manufacturing industry in Chile. Using qualitative research and building on a case study, the findings suggest that predominant renewal strategies were restructuring through mergers, a variation on the Anglo-Saxon labour-management partnership, and organising based on recruiting new members and legal mobilization. The article argues that these revitalisation strategies were implemented in relation to the deployment of the employer's trade union weakening strategies, this being the central feature that drove the renewal capabilities of the researched trade union. The article contributes to enlarge the understanding of the way employer strategies and regulatory contexts shape the union revitalization framework.

The ‘madness’ of accessing justice: legal mobilisation, welfare benefits and empowerment

ABSTRACT This article explores a paradigmatic case of legal mobilisation in the UK: successful litigation taken by RF, an anonymous claimant, against the Department of Work and Pensions’ cuts to disability mobility benefits for those facing ‘psychological distress’. While there is now a flourishing literature on the mobilisation of disability rights around the world, socio-legal scholarship has tended to overlook the mobilisation of law by those experiencing mental ill health or the potential contributions of adoption a social model of madness, mental distress and confusion. In developing a ‘thick description’ of the litigation process in the RF case, the article inductively identifies important lessons for scholars of legal consciousness and legal mobilisation. It showcases how the litigation process has both oppressive and empowering potential for those who are otherwise subject to systemic oppression by mental health and welfare benefit services. Second, it broadens the empirical literature on disability legal mobilisation which has largely overlooked the mobilisation of law by mental health service users and psychiatric survivors beyond issues related to psychiatric interventions, institutionalisation and detention.

Interdisciplinary Perspectives on Global Labor Governance: Organizing, Legal Mobilization and Decolonization

Labor movements around the world have explored various forms of global labor governance mechanisms to hold multinational companies accountable for ensuring workers’ and human rights throughout their supply chains. This article examines H&M’s Global Framework Agreement (H&M GFA) and its implementation in three Asian producing countries: Bangladesh, Cambodia, and India to develop some insights on global labor governance. H&M commits to foster trade union and labor rights but is not legally obligated to take steps to actualize those rights. The article contextualizes and signify GFAs importance within international human rights and labor law by referring to business and human rights instruments and by utilizing a social movement perspective. Drawing from three main social movement oriented theoretical disciplines: organizing, legal mobilization and decolonization, this paper evaluates the H&M GFA and GFAs generally. The article pays particular attention to GFAs’ impact on gender because the majority of the workers in the global garment industry are women. In the Asian context, GFAs must be strengthened to be binding on companies to enforce the fundamental labor right to freedom of association, collective bargaining and non-discrimination. They must proactively involve national unions in the negotiation, implementation, and enforcement of the agreement to ensure their full participation and seek their meaningful input on the socio-political context of the producing countries. They must be conceived with a grassroots, multi-layered approach to governance to enable workers from the factory level to the international level to exercise their power and agency to establish labor standards and resolve disputes, form worker-led organizations such as trade unions, and facilitate implementation procedures that are binding on multinational corporations. Further, in the garment industry, the GFAs must proactively address gender related concerns and provide clear avenues for women workers to raise these issues. Notwithstanding these challenges to GFAs, among labor governance strategies within international human rights law, it has the most promise in actualizing labor and human rights.

The Rule of Law State and social justice in a changed world order: some feasible considerations on the modern interpretation of the “|eternal constitutional ideals”

The paper contains the author’s analysis of the issue of ontological consistency of the western neoliberal and postmodernist concepts of the Rule of Law and the supremacy of law in the context of those events happening in the global world which are realizing the scenario of full-scale economic war of the “western coalition” countries against Russia. It is highlighted that ideological and axiological basics of the Russian legal culture have a variety of substantial differences in compare with those legal models which are implemented by the western “democracies”. For this reason, it is necessary for Russian Federation to refuse the way of following by the concept of the Rule of Law which was implanted in our country during the last three decade in its neoliberal, pro-western meaning, and to focus on rebuilding of legal-social state achieving that economic and socio-political mode, when law becomes the direct synonym of social equity. It is concluded that such a result is possible and necessary for our country by performing as the political, military and economical mobilization, as the legal mobilization and moral uplift.

Law and Liberation: Legal Consciousness and Legal Mobilization in Post-Communist Europe

Law and Liberation: Legal Consciousness and Legal Mobilization in Post-Communist Europe

The creativity of the judge faced with new health-at-work problems: the Japanese case of karôshi and

Recent court rulings in France have challenged work organization and management as major factors in psychosocial risks that can generate occupational stress leading to suicide. This global approach to work organization and managerial practices in the corporate world contrasts with the Japanese processual approach toward the criteria and conditions for establishing the causal link between labour and worker death (karôshi), and labour and worker suicide (karôjisatsu). In Japan, the individualization of cases and the withdrawal of the trade unions from the anti-karôshi struggle at the end of the 1980s transformed the nature of the movement into a legal mobilization. The organization of the movement by Japanese lawyers based on court decisions nevertheless led to profound changes in the law and in labour law.